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NWF.175/Feb.26.2004
[1] New Coalition Of BPA Customers Fights For Cut In Summer Spill
[2] BPA Will Spill For Hatchery Release Next Week
[3] Ninth Circuit Dismisses Appeal Of Hogan Decision
[4] Fish Seasons Set For Big Spring Run
[5] Co-Managers To Get Role In Drafting New BiOp 'Tech Memos'
[6] Irrigators In Limbo Over BiOp Suit; Call For Judge To Step Down

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[1] NEW COALITION OF BPA CUSTOMERS FIGHTS FOR CUT IN SUMMER SPILL

With federal agency executives slated to make a decision about summer spill by the end of March, a pair of coalitions are staking out their own patches of policy turf.

Earlier this month, an umbrella group of 54 Northwest tribes, known as the Affiliated Tribes of Northwest Indians, passed a proclamation opposing any reduction in summer spill at federal dams.

But a group of Bonneville Power Administration customers, known as the Coalition for Smart Salmon Recovery, formed this month to promote reducing spill, which it says could save the power marketing agency up to $77 million a year.

On Feb. 19, the industry group sent a letter to the four Northwest governors, asking for support in eliminating or reducing the expensive program that costs the region more than $3 million for each ESA-listed fish.

"Summer spill was begun with good intentions, but has not proven as effective as first hoped," the coalition said. "Rather than blindly continue a costly and ineffective strategy, we are urging the U.S. Army Corps of Engineers, BPA, and NOAA Fisheries to eliminate or reduce summer spill in those cases where science shows that more effective alternatives exist."

The coalition is made up of industry and agriculture-related groups, including the Pacific Northwest Waterways Association, the Pacific Northwest Generating Cooperative, the Public Power Council, and the Pacific Northwest Utilities Conference Committee.

Using BPA's own numbers, the coalition says $2 million could pay for programs that could add another 50,000 salmon a year to fall runs.

However, environmental groups, including Earthjustice, announced a week ago that they planned to sue BPA, the Corps and the Bureau of Reclamation, an action that could torpedo any reduced spill scenario before next summer.

Earthjustice's latest "notice to sue" letter is an amended version of its original May 9, 2003 missive that only targeted NOAA Fisheries. The updated notice alleges that the action agencies charged with implementing the hydro BiOp--namely BPA, Bureau of Reclamation, and the Corps--have failed to comply with the ESA, as well as with the prohibition on "take" of listed species.

Earthjustice attorneys have already tried to get the BiOp thrown out after the process went into remand, but last June federal judge James Redden ordered the BiOp to remain in place while it was being rewritten.

The new letter says the action agencies have consistently failed to implement all the measures of the RPA (i.e. the Reasonable, Prudent Alternative), including Bureau and Corps decisions to "significantly curtail spill and flow measures."

The letter came a day after the BiOp steering committee discussed getting a temporary restraining order to keep summer spill from being reduced.

"We disagree fundamentally with the premise of the letter," said Scott Corwin, spokesman for the Pacific Northwest Generating Cooperative. "The action agencies are implementing the BiOp, and the large fish returns from ocean conditions are enhanced further from actions in the hydro system. We've come a long way in the last few years."

The "notice to sue" letter says that without offsite mitigation in place for dam operations to avoid jeopardizing ESA-listed fish runs, current operations do jeopardize the species. Unless action agencies "cure the violations" within 60 days, the groups said they will go to court to seek preliminary or injunctive relief to protect the listed species.

BPA says a no-spill option in July and August would likely reduce the numbers of ESA-listed fall chinook by only two dozen fish or less, but the smart money is betting that the execs will approve a proposal to evaluate the costs and benefits of a reduced spill regime.

One option under consideration--BiOp spill at four dams in July, but none during August--could save ratepayers $42 million a year, and is estimated to reduce future adult numbers of all stocks by only 6,000 fish. Only six listed fish were expected to be lost, using a smolt-to-adult return rate of 2 percent.

After input from regional fish managers, BPA lowered some of the expected benefits from its potential offset actions. Initial smolt benefits are expected to be about half of last month's estimate from increasing the pikeminnow bounty program enough to reduce its population by 2 percent. But the benefits are similar to the ultimate improvement eight years out that was pegged in January (7,000-56,000 more adults annually).

The benefits from reducing juvenile stranding in the Hanford Reach may be less than estimated, as well. BPA said the strategy could add another 30 million fry in 2004, the equivalent of about 50,000 adults.

But comments sent from Grant County PUD biologist Joe Lukas to BPA may get the power agency to reduce those expected benefits. Lukas said using more realistic density data and SARs (0.2 percent to 1 percent) than BPA used in its analysis (0.5 percent to 4 percent SARs) could add 2,000 to 10,000 more adults to runs, instead of BPA's more optimistic 16,000 to 124,000 fish from the 2004 outmigration.

But using those same "more realistic" SARs from Lukas would reduce adverse impacts calculated from reduced spill as well. With a 1 percent SAR, impacts from no summer spill would reduce the adult numbers of all affected stocks by about 9,000 fish. Calculating the estimated losses from an option more likely to be approved by agency execs (BiOp spill July, no August spill) would result in losses in the 3,000-fish range.

But the message from the tribes was shrill. In their press releases last week, they trumpeted potential losses up to 50,000 adults a year. Calls to the Columbia Inter-Tribal Fish Commission were not returned.

Regardless how the numbers play out, some, like Washington Power Council member Larry Cassidy, just aren't impressed with BPA's offset analysis. "We should have direct mitigation for those fish being lost," Cassidy said at last week's meeting of the Northwest Power and Conservation Council.

Later, Cassidy told NW Fishletter that he was especially concerned about stocks that originated below McNary Dam that couldn't benefit from barging, and the Hanford and Okanogan runs from his state.

He didn't think improving the pikeminnow program would help that much, either. As for the reduced juvenile stranding at Hanford by minimizing river fluctuations, he said BPA shouldn't get double credit for it, since the power agency was going to sign an agreement to do it, anyway. -Bill Rudolph

[2] BPA WILL SPILL FOR HATCHERY RELEASE NEXT WEEK

Dam operators, power marketers and federal fish folk have agreed on a plan to spill water at Bonneville Dam to help an early release of 7 million juvenile fall chinook from the Spring Creek Hatchery, operated by the US Fish and Wildlife Service. The four-day spill is expected to cost BPA about $750,000 in lost revenues, according to Greg Delwiche, the agency’s vice president for generation supply.

BPA policymakers were hoping to get by with no spill this year, pointing out that the new $50-million-plus corner collector at the dam is likely to provide survival benefits equal to that of spilling water (about 98 percent survival), but salmon managers didn’t agree, saying that the collector has not been rigorously tested.

In 2002, before the collector was in place, Corps of Engineers' biologists reported that spilling would boost survival from 95 percent to 96.5 percent overall. BPA spilled for three days at Bonneville that year to aid the Spring Creek release, but last year, the March spill lasted only 36 hours, after the power agency originally said deteriorating financial conditions would keep it from spilling at all. Even then, BPA figured the spill would cost $3,000 for every extra adult fall chinook created by the effort.

This year, the salmon managers originally called for three test releases of fish, but settled for a compromise-- 4 days of 24-hr. spill at the dam (50,000 cfs) with the collector in operation, followed by another four-day test with no spill while the collector is working. Delwiche said USFWS has agreed to forego asking for spill for the early Spring Creek releases in 2005 and 2006.

The March spill effort has long been a target for critics, who cite the low value of the adult tules to both lower Columbia River sports and commercial fishers. The fish are nearly ready to spawn by the time they enter the river, bearing low-quality flesh that brings only a few cents a pound from wholesale fish buyers.

"BPA had an opportunity to save money because this spill just doesn’t make any sense," said Ed Bartlett, one of Montana’s representatives to the Northwest Power and Conservation Council. Bartlett said he saw some merit in evaluating the collector, but questioned its need in March since an evaluation on the new passage route would be underway during the regular migration season, anyway.

The tule run makes up a good part of the ocean sports and commercial fisheries from Washington to Alaska-- about 27 percent of the chinook catch off Washington and Oregon and 9 percent of the catch off Vancouver Island, according to Spring Creek hatchery manager Larry Marchant.

About 180,000 Bonneville Pool tules showed up in 2003, out of a total fall run of nearly 900,000 fall chinook. About 138,000 hatchery tules are expected this year out of a total run that is pegged at just over 600,000 fish.

These large returns have also led to huge surpluses at the Spring Creek Hatchery. Marchant said over 54,000 fish returned to the facility last year, but only 7,000 to 8,000 were needed for egg production. The spawned-out fish were trucked to Warrenton, Oregon where they were processed into pellets that will be used to fertilize streams throughout the region.

The rest of the excess fish went into the federal prison system to feed inmates. The hatchery provided many thousands of fish for inmate meals the previous year as well, when the Spring Creek facility filled up with 60,000 extra adults. -B. R.


[3] NINTH CIRCUIT DISMISSES APPEAL OF HOGAN DECISION

The Ninth Circuit Court has dismissed an appeal by environmental and fishing groups of a 2001 ruling (Alsea Valley Alliance v. NMFS) by Oregon District Court judge Michael Hogan who tossed the ESA listing for the state's coastal coho stock. Hogan said the federal government failed to offer the hatchery component of that coho population the same protection given to the wild component of the ESU [Evolutionarily Significant Unit] and that was illegal because the hatchery stock had been included in the ESU.

A three-judge panel from the Ninth Circuit ruled Feb. 24 that since NOAA Fisheries was already re-writing its policy in response to the district court decision, there was no "final decision" yet to appeal, therefore the Ninth Circuit did not have jurisdiction. They said the Hogan ruling doesn't mean the coastal coho are off the threatened species list, but that it prohibits the enforcement of the listing decision.

Plaintiffs, represented by the Pacific Legal Foundation, were buoyed by the results, even though the panel sidestepped a decision on the merits of the case, said PLF attorney Russell Brooks. The plaintiffs have maintained that the hatchery and wild components of the run were genetically indistinguishable. With hatchery numbers added to the wild run, they said the coastal coho were not in danger of extinction.

Brooks pointed out that the court dissolved the stay of Hogan's decision that has been in effect since the appeal began. This means that the coastal coho population is not currently under ESA protection, which could have major repercussions for timber harvest in federal forests in the state's coastal forests. But the coho are still listed for protection under Oregon law, which comes into play when state lands are affected.

Earthjustice attorney Kristen Boyles, who represented the Oregon Natural Resources Council and other conservation and fishing groups that intervened after Hogan's 2001 ruling, said the court's "non-decision" handed the fate of threatened salmon back to agency scientists, who, "have always recognized the differences between hatchery and wild salmon."

In the meantime, Brooks said his foundation will fire up more lawsuits, going back to Hogan's court to use his ruling to throw out the listing of Klamath River coho and file a "notice of supplemental authority" in Washington DC District Court where Northwest farm groups and others sued the feds (Common Sense Salmon Recovery v. NMFS) over the failure to include hatchery fish when considering the plight of Puget Sound chinook. Parties in that suit have already been waiting more than a year for the judge in that case to rule.

NOAA Fisheries regional administrator Bob Lohn had promised the region a revised ESA hatchery policy by last fall that would be used as a tool in the status update for listed Northwest stocks. A draft policy was shopped out for comment by states and tribes, but has been quietly shelved.

Since then, the agency has debated internally over a final product, with regional and DC NOAA Fisheries policymakers reportedly at odds with each other and the agency's own scientists.

Brooks said that in places like Puget Sound, hatchery and wild fish have been interbreeding so long that there are no truly "wild" fish left.

"NMFS appears to need a tutorial on ESA compliance," Brooks said. "The Ninth Circuit just upheld a decision containing an arithmetic lesson saying, 'count all the fish.'"

But wild fish advocates say that such interbreeding can introduce disease into wild populations and change the genetic makeup of wild stocks. They also say hatchery fish compete with wild fish for food in streams.

However, new federal policy could take the Hogan decision into account and still protect the naturally spawning component of many runs by simply delineating the hatchery portion as a "distinct population segment," said the panel of Niners, who noted "a more plausible route to the natural-only listing would be to have the Service [NMFS] reformulate its criteria for determining which groups of salmon constitute DSPs. In addition, nothing prevents the Service from forging an entirely new set of rules from scratch." -B. R.


[4] FISH SEASONS SET FOR BIG SPRING RUN

Washington and Oregon fish managers have developed rules to allow sports and commercial fishermen a chance to harvest hatchery spring chinook on the Columbia River while protecting ESA-listed wild stocks in a total run that's expected to be around 500,000 fish, the second largest since 1938. Managers expect sporties and commercials to catch about 10 percent of the run.

But non-Indian fishers will only be allowed to keep chinook marked by a clipped adipose fin, which means it is of hatchery origin. About 70 percent to 80 percent of the hatchery fish are so marked. Sports fishing is open now below the I-5 bridge and managers say they will close it later in the spring after impacts are better understood. Fishing above the bridge all the way to McNary Dam will commence Mar. 16.

With commercial test fishing slated to begin Feb. 22, the fleet was expected get on the water by the 24th if fish show. The early season is designed to harvest more hatchery chinook heading for the Willamette River, to reduce impacts on wild steelhead and conflicts with sporties.

Mesh sizes for some nets have been boosted to between 9 and 9.75 inches to let more steelhead through the gear. Harvest managers have estimated that 40 percent of the wild chinook released from the large-mesh gear later die; the mortality rate for steelhead is pegged at 30 percent. That's why some netters will be using 4.25-inch maximum mesh tangle nets, which are estimated to be about half as lethal for released fish.

With non-Indians allowed just 2 percent of an upriver Columbia run that's expected at about 200,000 fish, sporties will be allocated just over half, at 1.2 percent of the catch, with commercial fishermen getting the rest. -B. R.


[5] CO-MANAGERS TO GET ROLE IN DRAFTING NEW BIOP 'TECH MEMOS'

Collaboration may be an aberration in the salmon recovery industry, but that may change since Oregon District Court Judge James Redden told the BiOp remand parties that federal scientists need to listen more to state and tribal fish managers. On Jan. 23, the state of Oregon submitted a proposal to federal attorneys to address the issue.

Speaking for the lower Columbia tribes, the Washington Department of Fish and Wildlife, and the states of Idaho and Oregon, Oregon assistant attorney general David Leith suggested a way to collaborate with federal scientists, including facilitation for discussion, "to ensure a candid discussion of the science."

The letter also said that the contents of the discussions should not be used against any party in the current litigation, and would probably extend the current remand schedule by only 60 days. Judge Redden had earlier said he wanted a new BiOp by this June.

The feds responded Jan. 30, calling the proposal "solid," and met Feb.12 in Portland with all parties for a scoping session. However, Justice Department attorney Fred Disheroon thought the remand extension would take longer than 60 days, "and it may require significantly more time."

Judging from comments by states and tribes on the latest research updates from NOAA Fisheries' salmon scientists, the process could take much longer than anyone expects. These preliminary documents are being touted as the basis for a new BiOp, but some salmon managers found plenty to grouse about.

"Rife with rambling hypotheses proffered throughout the results . . ." was one comment from Michele DeHart, executive director of the Fish Passage Center, referring to the NOAA tech memo dealing with effects of the hydro system on salmon populations.

DeHart also found the memo "unbalanced" as to the amount and quality of the data "used to dismiss prevailing hypotheses." She suggested more time and corroboration with co-managers [states and tribes] "might have led to a better quality draft product."

The U.S. Department of Fish and Wildlife Service offered its own take on the tech memos. "The major concern we have with this memorandum is that it does not present an organized scientific approach for identifying and assessing indirect (delayed) mortality of the FCRPS [Federal Columbia River Power System] as it relates to recovering salmon populations," said USFWS project leader Howard Schaller.

Comments from the Idaho Department of Fish and Game expressed concern over the feds' assumption that inriver migrating fish experienced very little delayed mortality.

The Columbia River Inter-Tribal Fish Commission made similar comments and tacked on more than 100 pages of old analysis of recovery actions using the PATH process, a complicated form of Bayesian analysis developed by a group of regional scientists from state, tribal, federal agencies, along with a few Bonneville Power Administration consultants. The PATH results were later dumped by federal scientists, and also disavowed by some PATH participants, who, using new PIT tag data, determined that juvenile survival was much higher than the PATH analysis had estimated.

Idaho water users took issue with the feds over flow and survival for fall chinook in the lower Snake, citing work by the University of Washington's Jim Anderson, that says fall chinook survival is related to water temperatures, not river flows. -B. R.


[6] IRRIGATORS IN LIMBO OVER BIOP SUIT; CALL FOR JUDGE TO STEP DOWN

After a Feb. 12 session with BiOp judge James Redden, Portland attorney James Buchal left Oregon District Court still unsure of the status of a lawsuit filed last September by his irrigator clients against NOAA Fisheries' 2000 hydro BiOp after the document was already in a remand process.

"We're in limbo," Buchal told Northwest Fishletter.

The irrigators allege that the 2000 BiOp has serious scientific shortcomings, but they filed a motion to consolidate their action into the remand, hoping to have more clout as the new document is written.

But the fate of that motion is still somewhat murky, as is Buchal's membership on the remand's steering committee. "I think I'm out," said Buchal, who had volunteered earlier to stay the irrigators lawsuit if they were allowed into the remand process.

Discussion last month among the remand parties over whether to consolidate the irrigators' suit into the remand was never settled, but Judge Redden seemed to leave it up to Justice Department attorneys and Buchal to "handle it," according to minutes from the Jan. 17 steering committee meeting.

Buchal said he interpreted the judge's remarks as giving the Justice Department the go-head to file a motion to stay.

However, plaintiffs in the case (National Wildlife Federation v. NMFS), represented by Earthjustice attorney Todd True, objected to giving the irrigators full standing. The irrigators had filed for amicus standing last year, but Redden denied their motion.

Buchal has filed another motion asking the judge to disqualify himself from their lawsuit because Redden's "impartiality might reasonably be questioned," and because the judge has "a personal bias and prejudice concerning a party or personal knowledge of dispute evidentiary facts concerning the proceeding."

"It's a question of accountability," said Darryll Olsen, speaking for the Columbia/Snake and Eastern Oregon Irrigators Associations. "The judge is running roughshod over the process."

The irrigators say the steering committee Redden established to oversee the remand violates rules barring courts from adding extra-statutory procedural requirements on agencies. The committee is also "requiring special rights for 'scientific' input for state and tribal fishery experts, while denying such participation to other interested parties."

The irrigators also criticized Redden for requiring special confidentiality provisions to protect state and tribal input from future litigation. They say the judge has become a political activist who has made it clear that he wants to secure more fish recovery money for state and tribal agencies.

Buchal also claimed in an affidavit that the remand steering committee discussed staying the irrigators' action with the judge last October, but the discussion was not part of the transcript of the meeting. Buchal was not part of that proceeding.

One witness to the October discussion, Buchal said, told him that Redden encouraged the Justice Department to file a motion for the stay. He said four other participants in that meeting confirmed the discussion. But none were willing to step forward and voluntarily testify "because they fear Judge Redden's reaction, and expect that Judge Redden will be handling this and other salmon cases in which their organizations, clients, or members have an interest," Buchal said. He added that he'd been advised that he could subpoena "multiple participants" in the meeting to overcome their fear of being singled out by the court.

The Justice Department's lead attorney later told him, Buchal said, that the judge was likely to grant the stay, which persuaded him to believe that his clients would have more influence in the decision-making if he were appointed to the steering committee.

But at the Jan. 16 meeting of the steering committee, the judge decided the irrigators would not get a seat at the remand table. According to Buchal, at that time, the Justice Department attorney still thought the judge would grant a stay.

Buchal says that if the judge does grant the stay, "it will effectively terminate" his lawsuit since a new BiOp will be issued sometime after June that will moot any question of legality of the 2000 BiOp, and mean more months of delay before irrigators could file a new lawsuit.

He also said he could find no public record of the numerous documents being handed to the judge at the January meeting.

The irrigators say the 2000 BiOp channeled "junk science through specious interpretations of the Endangered Species Act," giving the hydro system the duty of offsetting salmon mortality throughout the Northwest. -B. R.

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